The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).Read More
Personal Injury and Insurance Law Legal Research Blog
Can a court or a jury award punitive damages against a tortfeasor's estate? The Ohio Supreme Court addressed this issue of first impression in Whetstone v. Binner, 2016-Ohio-1006, 2016 WL 1061742. The case arose when a mother left her daughters with a babysitter, who was a relative. When the mother returned to pick up the children, she discovered the relative with one hand on one child and the other hand holding a pillow over the child's head. The mother struggled with the relative before escaping with her daughters. The mother and both daughters were later diagnosed with posttraumatic stress disorder, and they sued the relative for assault, false imprisonment, emotional distress, and loss of consortium. They sought both compensatory and punitive damages.
After a default judgment was entered, the relative moved for relief from the judgment and requested postponement of an evidentiary hearing to determine damages. The trial court rescheduled the hearing but refused to grant relief from the judgment, and the relative died before the hearing took place. After the administrator of the relative's estate was substituted as the defendant, the trial court awarded compensatory damages but declined to award punitive damages. The court believed that punitive damages cannot be awarded against a tortfeasor's estate.Read More
The Lawletter Vol 41 No 1
When a catastrophic accident causes one or more people to die, multiple legal questions inevitably arise. Among these is the issue as to whether and to what extent the deceased person's medical insurance company is entitled to recoup the costs it paid for the person's medical treatment prior to death from any wrongful death settlement or verdict eventually entered in favor of the decedent's estate and/or beneficiaries.
Although the answer to this question depends on the law of each particular state, an examination of Administrative Committee of Dillard's, Inc. Group Health, Dental & Vision Plan v. Sarrough, No. 1:14-CV-01165, 2015 WL 3466568 (N.D. Ohio June 1, 2015), appeal dismissed, No. 15-3718 (6th Cir. Aug. 12, 2015), may be illuminating. There, Hanan Saah was injured in a February 2011 car accident in Ohio. Her employer, Dillard's, paid $260,000 of her medical expenses pursuant to a federal Employee Retirement Security Act of 1974 ("ERISA") health plan. Saah subsequently died in July 2011. Her estate was eventually awarded $300,000 in various wrongful death settlements. Dillard's then claimed a right to the settlement proceeds in order to recoup its $260,000 in medical costs.
The district court determined that, as an initial matter, it was important to distinguish, and to allocate the amount of funds attributable to, the two different components of the settlement: Saah's survival claim versus the wrongful death claim. Dillard's, as the ERISA-approved health benefit plan, had a right to obtain reimbursement of medical expenses paid from net settlement proceeds allocable to the survival portion of the settlement. Under Ohio law, the survival action belongs to the decedent's estate and, therefore, was subject to subrogation.Read More
The Lawletter Vol 40 No 10
Can damages for emotional distress be recovered in a nuisance claim in the absence of physical injury? That was one of three issues of first impression that were recently addressed by the Nevada Supreme Court. In Land Baron Investments, Inc. v. Bonnie Springs Family LP, 356 P.3d 511 (Nev. 2015), a purchaser (Land Baron) contracted to buy land on the outskirts of Las Vegas. The land was largely undeveloped, and the buyer intended to construct a subdivision there. Land Baron conducted no due diligence to investigate the availability of water and access rights, and these issues were not addressed in the contract.
Before the closing occurred, it became apparent that Land Baron would be unable to acquire sufficient water and access rights for the proposed project. Land Baron stopped making payments to extend the escrow period, thereby breaching the contract. Land Baron then filed a complaint with the Clark County Commissioner's office, alleging that there were multiple code violations on the property. The Commissioner and other state and local authorities conducted a large-scale investigation on the premises at a time when guests and children were present.Read More
The Lawletter Vol 40 No 6
Can an innkeeper be held liable when an evicted guest is injured after leaving the premises? Yes, according to the Colorado Supreme Court, in a decision that may apply in other contexts as well. In Westin Operator, LLC v. Groh, 2015 CO 25, 347 P.3d 606, a hotel's security guards required a registered guest (Jillian Groh) and several of her friends to leave the premises because they were intoxicated and boisterous. One of the friends asked if the group could wait in the hotel's lobby while they called a taxi, because it was freezing outside, but the guards refused this request. Rather than calling a taxi, the group drove away in Groh's car, and an accident occurred about 15 miles from the hotel. An action was brought against the hotel for Groh's injuries.
The court considered whether the hotel owed a duty of care by drawing an analogy to cases involving injury to common-carrier passengers. The court relied on section 314A of the Restatement (Second) of Torts, which recognizes certain special relationships that give rise to a duty of care. That section expressly refers to innkeepers and common carriers, as well as any "possessor of land who holds it open to the public," Restatement § 314A(3), and it imposes a duty "(a) to protect them [invited members of the public] against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others," id.§ 314A(1).Read More
The Lawletter Vol 40 No 2
If a defendant's negligence causes no physical injury, can a plaintiff recover damages for the expense of monitoring his or her medical condition? That was the issue addressed by the Nevada Supreme Court in Sadler v. PacifiCare of Nevada, 340 P.3d 1264 (Nev. 2014). In that case, the plaintiffs sued a health maintenance organization for negligently failing to oversee the quality of care provided by medical providers in its network. The providers allegedly used unsafe injection practices, potentially exposing the plaintiffs to the risk of contracting HIV, hepatitis, and other blood-borne diseases.Read More
The Lawletter Vol 39 No 6
Topics: legal research, Fred Shackelford, Va. Supreme Court, The Lawletter Vol 39 No 6, personal injury law, comparing punitive damages to prove excessive comp, Coalson v. Canchola, determination must be based on facts and circumsta
The Lawletter Vol 38 No 6
A "golden rule" argument asks jurors to place themselves in the position of a party. For example, an attorney may ask jurors how much the loss of the use of their legs would mean to them or ask them to "do unto others as you would have them do unto you." Virtually all courts have considered such arguments to be improper if made in regard to damages. However, courts appear to be split as to whether such arguments are permissible with reference to liability.
The U.S. Court of Appeals for the District of Columbia recently addressed this issue in Caudle v. District of Columbia, 707 F.3d 354 (D.C. Cir. 2013). In Caudle, several employees sued their employer for retaliation under the Civil Rights Act of 1964. During closing argument, their attorney made four statements to the jury that were challenged on appeal.
First, counsel instructed the jury to "ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office[?]" Id. at 358 (emphasis omitted). Second, counsel argued, "Ask yourself this: Wouldn't you think twice about complaining about workplace discrimination[?]" Id. (emphasis omitted). Third, counsel asked the jurors "to put yourselves in the plaintiffs' shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded[?]" Id. (emphasis omitted). Finally, counsel argued:
By protecting plaintiffs' right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.
Id. (emphasis omitted).
The Caudle court noted that at least four circuits have held that golden rule arguments are proper when they relate to liability, while the Third Circuit found no distinction between golden rule arguments relating to damages versus liability. The Caudle court decided that a golden rule argument is improper regardless of whether it relates to liability or to damages and that such an argument may require a new trial. The court concluded that the rationale for prohibiting a golden rule argument as to damages—preventing a verdict based on inappropriate considerations such as emotion—applies equally to liability arguments.
Turning to the specific arguments by plaintiffs' counsel, the Caudle court found that all four were inappropriate. The first three arguments were improper because they asked the jurors to decide how each of them—not how a reasonable person—would feel in the plaintiffs' situation. The fourth argument was not a golden rule argument, but the court found it to be inappropriate as well. It was a "send a message" argument which, like the golden rule arguments, diverted the jury's attention from its duty to decide the case based on the facts and law as opposed to emotion, personal bias, or interest. Id. at 361.
Topics: legal research, The Lawletter Vol 38 No 6, Fred Shackelford, golden rule arguments, Third Circuit found improper as to damages or liab, Caudle v. District of Columbia, send-a-message argument also inappropriate, personal injury
The Lawletter Vol. 38 No. 3
In many states, one of the elements of the tort of malicious prosecution is initiating or procuring the institution of a criminal proceeding. See generally Restatement (Second) of Torts § 653. This element focuses on whether the alleged tortfeasor had probable cause at the time he or she initiated or procured the criminal action against the plaintiff. What if probable cause exists initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue the action? Is there any liability when a party maintains the action thereafter? In a case of first impression, the Hawaii Supreme Court recently addressed this issue.
In Arquette v. State, 290 P.3d 493 (Haw. 2012), the respondents initiated an action in 2004 against the petitioner (Arquette) and others, alleging that Arquette had participated in a scheme to sell long-term deferred annuities to elderly consumers through unfair or deceptive acts. The scheme allegedly involved Arquette and an insurance agent, an attorney (Wong), and others, who were accused of using Wong's name and law practice on mailings that offered information about elder law. Individuals who responded to the mailings were then contacted at their homes, where Arquette and others falsely identified themselves as "paralegals" working for Wong. After personal and confidential financial information was obtained from the persons who were contacted, Arquette and others allegedly marketed annuities to them without providing them with the information necessary for making an informed decision. In 2006, the action against Arquette was dismissed without prejudice.
In 2008, Arquette sued the respondents for malicious prosecution and other causes of action, based on both initiation and maintenance of the 2004 action. The trial court granted summary judgment for the respondents as to the claim for maintaining the 2004 action, and the Hawaii Intermediate Court of Appeals affirmed, ruling that Hawaii does not recognize a tort action for maintaining a prosecution when probable cause to continue no longer exists.
On appeal to the Hawaii Supreme Court, the court noted that such a cause of action has been recognized in Restatement § 674 and in 13 other states. Explaining the rationale for this cause of action, the court explained:
Although litigation may be warranted in the eyes of the plaintiff at its commencement, if that plaintiff becomes aware that the litigation is no longer justified, then the plaintiff should terminate the litigation. Indeed, "litigation 'has a profound effect upon the quality of one's life that goes beyond the mere entitlement to counsel fees.'" [Young v. Allstate Ins. Co., 119 Haw. 403,] 421, 198 P.3d [666,] 684 [(2008)] (quoting Aranson v. Schroeder, 140 N.H. 359, 671 A.2d 1023, 1028 (1995)).
If a plaintiff fails to terminate litigation when he or she knows it would be appropriate to do so, then the same harms are inflicted on the defendant's quality of life that would have been inflicted if the plaintiff knew that the litigation was unjustified in the first instance. In order to properly guard against the harms associated with protracted litigation, the tort of maintaining malicious prosecution should be recognized.
Id. at 501.
April 25, 2013
At a baseball stadium, what duty of care is owed to spectators with respect to errant balls? The Idaho Supreme Court recently addressed this issue in Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013). The plaintiff in Rountree lost an eye as a result of being struck by a baseball while he was in Memorial Stadium's "Executive Club" section, which was located at the very end of the third-base line. This area was one of the stadium's only sections that was not covered by vertical netting.
The Rountree court noted that the precise duty owed by stadium owners and operators to spectators injured by foul balls was a matter of first impression in Idaho. The court recognized that other courts have addressed the issue, stating:
The majority of jurisdictions to consider the issue have limited this duty by adopting some variation of the Baseball Rule. See generally James L. Rigelhaupt, Jr., Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp.2003); Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144 (1935); Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 180 P.3d 1172 (2008); Lawson, 901 P.2d 1013 (Utah 1995); Bellezzo v. State, 174 Ariz. 548, 851 P.2d 847 (Ariz.App.1992); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981); Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989); Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo.1950); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925).
Though many variations exist, the most common formulation of the Baseball Rule is that stadium owners and operators must provide "screened seats [ ] for as many [spectators] as may be reasonably expected to call for them on any ordinary occasion." Quinn, 46 P.2d at 146; see also Rigelhaupt, supra, 91 A.L.R.3d 24 § 3[a]. The rationale behind this is put bluntly by the Eno Court: "it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness" and "they are liable to be thrown or batted outside the lines of the diamond." Eno, 147 N.E. at 87. The Eno Court therefore concluded that "due care on the part on the management does not require all of the spectators to be screened in; that the management performs its duty toward the spectators when it provides screened seats in the grand stand and gives spectators the opportunity of occupying them." Id.
Id. at 377-78 (footnote omitted).
The court acknowledged that it had the authority to establish or limit existing tort duties. However, it declined to do so in this case, concluding that Idaho's existing premises liability principles provide an adequate framework for analyzing a stadium owner's duty of care. Thus, a baseball fan at a stadium is an invitee, to whom the premises owner owes a duty to keep the premises in a reasonably safe condition or to warn of hidden or concealed dangers.
The court concluded that it was not necessary to establish a special rule for baseball stadiums or that if a special rule were necessary, then the legislature would be better equipped to do research and formulate one. The court reasoned as follows:
Boise Baseball admits that at least for "seven seasons[, Mr. Rountree's] accident is the only time a spectator has suffered a 'major' injury because of a foul ball" at Memorial Stadium. The rarity of these incidents weighs against crafting a special rule. There is no history of accidents that we can look to, and draw from, to sensibly create a rule. Furthermore, Boise Baseball has not provided any broader statistical evidence regarding the prevalence of foul ball injuries in general, and—assuming they are so prevalent—how varying stadium designs might prevent them. Without this information, drawing lines as to where a stadium owner's duty begins, where netting should be placed, and so on, becomes guesswork. These kinds of questions are appropriate for the Legislature because it "has the resources for the research, study and proper formulation of broad public policy." Anstine v. Hawkins, 92 Idaho 561, 563, 447 P.2d 677, 679 (1968). Declining to adopt the Baseball Rule leaves policy formulation to the deliberative body that is better positioned to consider the pros and cons of the issue.